CrimProf Blog

"L.A. DUI Checkpoints: Now With More Saliva in Your Questionable Fourth Amendment Practices"

FourthAmendment.com links to and excerpts this piece from Reason.com. In part:

Bad news from the open-air prison we call America today out of L.A., where cops are going to start demanding saliva samples from citizens it stops at DUI checkpoints who it finds suspiciously suspicious.

"Audit reveals serious problems with GPS tracking of serious offenders in LA"

Sentencing Law & Policy excerpts this article from the L.A. Times. In part:

One in every four GPS devices used to track serious criminals released in Los Angeles County has proved to be faulty, according to a probation department audit — allowing violent felons to roam undetected for days or, in some cases, weeks.

. . .

The findings come as nearly every California county is moving forward with some form of electronic monitoring to contend with tens of thousands of state inmates being released to their supervision, an offshoot of the effort to reduce prison overcrowding.

In Memoriam: Professor Myrna Raeder

The Southwestern Law School website has a tribute here.

Lamparello & MacLean on Restitution and Child Pornography Possessors

Adam Lamparello and Charles E. MacLean (Indiana Tech Law School and Indiana Tech Law School) have posted Paroline, Restitution, and Transferred Scienter: Child Pornography Possessors and Restitution Based on a Commerce Clause-Derived, Aggregate Proximate Cause Theory on SSRN. Here is the abstract:

This Article responds to the Fifth Circuit’s decision in In re Amy Unknown, which is before the United States Supreme Court on granted writ of certiorari. This Article poses a more logical and legal construct, derived from Commerce Clause analysis, that although each individual possessor of child pornography appears to contribute almost imperceptibly to the original victim’s harm, instead, on an aggregate proximate cause theory, the original victim would not have been victimized at all had there been no aggregate market of willing possessors for the material. Victims of child pornography, under the federal statute, and via aggregate proximate cause, have a right to restitution as against the possessors.

MacDonnell on the Jury Vetting Cases

Vanessa MacDonnell (University of Ottawa - Common Law Section) has posted The Jury Vetting Cases: New Insights on Jury Trials in Criminal Cases? ((2013) 63 Supreme Court L Rev (2d) 419) on SSRN. Here is the abstract:

In this article I discuss the Supreme Court of Canada’s decisions in the jury vetting cases of R v Yumnu, R v Emms, and R v Davey. I suggest that while the Supreme Court’s ruling goes a long way toward eliminating the concerns associated with jury vetting, there is a disconnect between the Court’s description of the jury selection process and how counsel tend to think about jury selection in criminal trials. While counsel are limited in their ability to influence the jury selection process, the Court might nevertheless have considered whether a full ban on jury vetting was needed to combat the risk – both real and perceived – that the Crown might act unethically during the jury selection process. I also examine whether the Court’s comments about the essential and inalienable features of the jury contribute to our understanding of the right to trial by jury enshrined in s 11(f) of the Canadian Charter of Rights and Freedoms.

Yoo on the NSA's Bulk Data Surveillance Programs

John Yoo (University of California at Berkeley School of Law) has posted The Legality of the National Security Agency's Bulk Data Surveillance Programs (Harvard Journal of Law and Public Policy, Forthcoming) on SSRN. Here is the abstract:

Controversy has arisen again over the federal government’s electronic surveillance efforts to gather intelligence on foreign terrorist groups. Recent disclosures, both authorized and illicit, have described two secret National Security Agency (NSA) programs. The first collects telephone “metadata” such as calling records — but not the content of phone calls — both inside and outside the United States. A second NSA program intercepts the e-mails of non U.S. persons outside the United States. Despite the claims of critics, these programs do not violate the Foreign Intelligence Surveillance Act (FISA), as recently amended by Congress, or the Fourth Amendment to the Constitution. Concerns about the proper balance between these surveillance programs and individual privacy may be appropriate, but they properly fall within the province of Congress and the President to set future national security policy.

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Kreit on the Federal Response to State Marijuana Legalization

Alex Kreit (Thomas Jefferson School of Law) has posted The Federal Response to State Marijuana Legalization: Room For Compromise? (Oregon Law Review, Vol. 91, p. 1029, 2013) on SSRN. Here is the abstract:

Ever since Californians voted to legalize medical marijuana in 1996, state and federal drug laws have been on something of a collision course. In the years since, the United States Supreme Court has decided two medical marijuana cases affirming federal authority to enforce prohibition laws against patients and providers acting in compliance with state laws. Though federal enforcement efforts have impacted the lives of those unlucky enough to be targeted by federal prosecutors, they have not succeeded in blocking the adoption and implementation of state medical marijuana laws. Including California, medical marijuana is now legal in eighteen states and the District of Columbia. In states that allow retail medical marijuana establishments, many continue to operate openly. 

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"NSA surveillance: Lifeline, limbo"

Politico has this article, suggesting a legislative judgment will come sooner than a judicial one. FourthAmendment.com links to the article.

"Teaching Criminal Procedure in a changing world"

Miriam Baer has this post at PrawfsBlawg. Hat tip: Orin Kerr at The Volokh Conspiracy, who adds that flux on the remedies side adds to the upheaval Baer observes.

Top-Ten Recent SSRN Downloads

in criminal law and procedure ejournals are here. The usual disclaimers apply.

Rank	Downloads	Paper Title
1	881	In God's Shadow: Unveiling the Hidden World of Domestic Violence Victims in Religious Communities  Michal Gilad,  University of Pennsylvania Law School,  Date posted to database: October 29, 2013
2	269	Moving Money: International Financial Flows, Taxes, & Money Laundering  Andrew P. Morriss, Richard K. Gordon,  Case Western Reserve University School of Law, University of Alabama School of Law,  Date posted to database: November 4, 2013
3	222	Criminalizing Revenge Porn: A Quick Guide  Mary Anne Franks,  University of Miami School of Law,  Date posted to database: October 12, 2013
4	196	The Mens Rea of Accomplice Liability: Supporting Intentions  Sherif Girgis,  Princeton University Department of Philosophy,  Date posted to database: November 4, 2013
5	183	Top Ten Reasons Sen. Gillibrand's Bill is the Wrong Solution to Military Sexual Assault  Charles James Dunlap,  Duke University School of Law,  Date posted to database: November 24, 2013
6	144	Misconstruing Graham & Miller  Cara H. Drinan,  Catholic University of America (CUA),  Date posted to database: November 9, 2013
7	143	Informal Collateral Consequences  Wayne A. Logan,  Florida State University - College of Law,  Date posted to database: November 4, 2013
8	135	The Legislative Response to Mass Police Surveillance  Stephen Rushin,  University of Illinois College of Law,  Date posted to database: October 26, 2013 [10th last week]
9	134	Remorse and Demeanor in the Courtroom: Cognitive Science and the Evaluation of Contrition  Susan A. Bandes,  DePaul University - College of Law,  Date posted to database: December 4, 2013 [8th last week]
10	128	Why Capital Punishment Violates the Constitutional Law of the United States  Michael J. Perry,  Emory University School of Law,  Date posted to database: October 18, 2013 [9th last week]

"No Life Without Parole for Juveniles, Mass. High Court Rules"

The post is at FindLaw.

"Is the NSA's Spying Constitutional? It Depends Which Judge You Ask"

From The Atlantic:

We have, in the span of just 10 days, seen two diametrically opposed judicial rulings about the legitimacy of the government's controversial bulk metadata collection program, the existence of which we learned about just this past year thanks to Edward Snowden. Although the two opinions apply the same law and essentially the same facts, they are so contradictory they cannot be reconciled. One judge will be proven right and the other proven wrong, although I suspect it may be 2015  before the final tally is recorded.

Citron & Franks on Criminalizing Revenge Porn

Danielle Keats Citron and Mary Anne Franks (University of Maryland Francis King Carey School of Law and University of Miami School of Law) have posted Criminalizing Revenge Porn (Wake Forest Law Review, Vol. 49, 2014, Forthcoming) on SSRN. Here is the abstract:

The non-consensual publication of non-newsworthy sexually graphic images deserves criminal punishment. It produces grave emotional and dignitary harms, exacts steep financial costs, and increases the risks of physical assault., A narrowly and carefully crafted criminal statute can comport with the First Amendment. Criminalization of revenge porn is necessary to protect against devastating privacy invasions that chill self-expression and ruin lives.

Gray & Jones on Specialized Theft Statutes

David C. Gray and Chelsea M. Jones (University of Maryland-Francis King Carey School of Law and University of Maryland Francis King Carey School of Law) have posted In Defense of Specialized Theft Statutes (New England Law Review, Vol. 47, p. 861, 2013) on SSRN. Here is the abstract:

This essay is an invited contribution to a symposium hosted by the New England Law Review in celebration of Stuart Green’s important book 13 Ways to Steal a Bicycle. As we note, Professor Green’s argument is so reasonable and executed in such elegant prose, there is little call for anything other than praise. Nevertheless, in the spirit of academic exchange, we challenge Professor Green’s skepticism of specialized theft statutes. Relying on retributivist theories of criminal punishment, we argue that specialized theft statutes have an important role to play in contemporary criminal law by educating the public about the necessary commitments that must be maintained in order to facilitate emerging fields of art, technology, and commerce and by guarding the boundaries of those enterprises. In the process, we propose an “enterprise theory” of theft that justifies criminal prohibition as a tool to defend vulnerable social enterprises ranging from retail sales to copyright.

NSA Phone Surveillance Ruled Lawful

How Appealing links to several reports, including the opinion itself from the U.S. District Court for the Southern District of New York.

Litton on Psychopaths and Excuse

Paul Litton (University of Missouri School of Law) has posted Criminal Responsibility and Psychopathy: Do Psychopaths Have a Right to Excuse? (Handbook on Psychopathy and Law (Oxford Series on Neuroscience, Law, and Philosophy) Kent A. Kiehl & Walter P. Sinnott-Armstrong, eds., New York: Oxford University Press (2013)) on SSRN. Here is the abstract:

This contribution to the Handbook on Psychopathy and Law argues that the characteristics of persons with psychopathy that support the strongest case for exemption from criminal responsibility also undermine a right to excuse. Whether the criminal law should hold them responsible may be settled by consequentialist considerations, which, I argue, speak in favor of criminal responsibility. 

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Fetzer & Yoo on New Technologies and Constitutional Law

Thomas Fetzer and Christopher S. Yoo (University of Mannheim and University of Pennsylvania Law School) have posted New Technologies and Constitutional Law (Routledge Handbook of Constitutional Law 485 (Mark Tushnet, Thomas Fleiner, Cheryl Saunders, eds., 2013)) on SSRN. Here is the abstract:

One of the most controversial issues among legal academics is the extent to which constitutional interpretation should adjust to reflect contemporary values. What has received less attention is the extent which changes in constitutional interpretation are driven not by shifts in political mores, but rather by new developments in technology. This chapter provides three examples of how technological change can affect law. First, technology can undercut existing law, as demonstrated by how the shift to digital and Internet-based transmission has undermined the rationales traditional for applying a relaxed standard of free speech to broadcast television. Second, technology can create pressure to modify existing law, illustrated by how protections against search and seizure have adapted to the advent of global positioning systems (GPS). Third, technology can provoke the creation of new constitutional rights, exemplified by the German courts’ recognition of constitutional protection against remote online searches of computers. These developments also raise important questions whether courts or legislatures are better suited to deal with this fast-changing environment.

"Church Official’s Conviction Revoked in Abuse Case"

From The New York Times:

The reversal of Monsignor Lynn’s conviction turned on disputed interpretations of Pennsylvania’s former child welfare law and does not have legal implications for other states. Prosecution of supervising officials for their handling of priests accused of abuse in past decades remains a rarity; grand juries in Boston and Los Angeles are known to have explored the issues but have not issued indictments, apparently because of legal constraints.

. . .

In Thursday’s reversal, the appeals court said that the state had provided “more than adequate” evidence that Monsignor Lynn “prioritized the archdiocese’s reputation over the safety of potential victims of sexually abusive priests.” But it rejected the argument, accepted by the 2012 trial judge and jury, that a child welfare law applied to a “parent, guardian or other person supervising the welfare of a child” could be used to prosecute Monsignor Lynn. To eliminate any ambiguity, that law was modified in 2007, after his retirement, to explicitly apply to employers and supervisors as well.

"Senders’ Fourth Amendment Rights in E-mails Seized from the E-mail Accounts of Recipients"

Orin Kerr has this post at The Volokh Conspiracy, commenting on a recent case. In part:

To understand the question, consider Fourth Amendment rights in postal letters. Before a letter is sent, only the sender has rights in the letter; during transmission, both the sender and recipient have rights in the letter; and once the letter is delivered at its destination, the recipient maintains Fourth Amendment rights but the sender’s rights expires. But how do you apply this to an e-mail? By analogy, a sender loses Fourth Amendment rights in the copy of the e-mail that the recipient has downloaded to his personal computer or cell phone. But does the sender have Fourth Amendment rights in the copy of the e-mail stored on the recipient’s server after the recipient has accessed the copy? And does the sender have Fourth Amendment rights in the copy of the e-mail stored on the recipient’s server before the recipient has accessed the copy? At what point does the sender’s Fourth Amendment rights in the sent copy expire?

 

"Rutherford Institute Asks U.S. Supreme Court to Ensure that Lawful Gun Ownership Is Not a Trigger for ‘No-Knock’ Police Raids"

From the website for The Rutherford Institute:

Warning against encroachments on the Second Amendment right to bear arms, The Rutherford Institute has asked the U.S. Supreme Court to hear the case of a Texas man whose home was subject to a no-knock, SWAT-team style forceful entry and raid based solely on the suspicion that there were legally-owned firearms in his household. Although police had obtained a search warrant for John Quinn’s home based on information that Quinn’s son might possess drugs, the warrant did not authorize police to enter the residence without knocking and announcing their entry. During the raid, Quinn was shot by police because he had reached for his lawfully owned firearm, thinking that his home was being invaded by criminals. In asking the Supreme Court to hear the case of Quinn v. State of Texas, Institute attorneys argue that making lawful gun ownership and possession grounds for police to evade the protections afforded by the Fourth Amendment improperly penalizes and limits the Second Amendment right to bear arms.